Keep your cool—a review of the Commissions' approach to workplace aggression30 November 2017
As the High Court prepares to examine whether employers need to protect employees from psychological damage caused by investigations into workplace assault, it is timely to examine our employment Commissions' views on when aggressive workplace behaviour justifies dismissal.
Recent case law suggests being involved in a workplace physical or verbal altercation doesn't automatically validate termination. Employers are put to a high standard when investigating and managing aggression in the workplace—so what do the Commissions require employers to do?
In Phillip Coffey v QBar Darwin Pty Ltd  FWC 4312, an employer stopped giving shifts to a casual café supervisor after he was overheard saying his manager "can be a racist b****". In August, the Fair Work Commission (FWC) found that this amounted to unfair dismissal.
The comment was made in circumstances where:
- the supervisor had complained to his employer that his manager was perpetuating an environment of "cultural exclusion" in the workplace, and
- the supervisor farewelled his manager, who did not respond.
In response to a complaint about the comment, the employer attempted to resolve the conflict between the manager and supervisor. But, the supervisor refused to participate and told the employer he had spoken to ex-employees and regular customers about the perceived cultural exclusion.
The employer first reduced and then stopped offering the supervisor shifts, before the supervisor began unfair dismissal proceedings.
In deciding the claim, Commissioner Bissett found the supervisor's actions were inappropriate and unprofessional, and warranted reproach and warning, but not dismissal.
In NSW, the Industrial Relations Commission reinstated a ranger who was dismissed following a physical altercation with a member of the public.
During the ranger's employment, the Council received complaints from the public about him. The Council investigated and provided the ranger with warnings and additional training on managing conflict through negotiation, de-escalating aggressive behaviours, conflict resolution strategies and dealing professionally with aggressive behaviour. Despite this, the ranger was involved in a physical altercation involving two assaults while processing abandoned, unregistered vehicles. After investigating the altercation, the Council terminated the ranger for failing to use de-escalation responses and act in accordance with Council procedures.
Commissioner Murphy found the dismissal was:
- unjust because weight was given to matters such as the ranger's conduct in the lead up to the first assault and his throwing the first punch in the second assault
- unreasonable because insufficient consideration was given to the ranger's mental state after the first assault, which it considered a significant mitigating factor, and
- harsh because the penalty of dismissal outweighed the seriousness of the ranger's misconduct.
In Mr Richard Hertaeg v Aviation Training Australasia Pty Ltd T/A Ansett Aviation Training  FWC 4870, the FWC upheld the dismissal of a union member for engaging in aggressive, offensive and disrespectful behaviour toward its Chief Operating Officer (COO).
During a meeting about the renegotiation of an enterprise agreement, the union member made statements aggressively suggesting (with numerous expletives) that the only way to be promoted was to provide sexual favours and that the company was stealing from employees. Employees complained and, after an investigation that found the conduct entirely at odds with the Respectful Conduct in the Workplace policy, a first and final warning was issued.
Later, the union member emailed the COO stating management treats employees "like fools, acting like mercenaries, destroying good will." The employer terminated the union member's employment stating the email constituted a breach of the first and final warning.
Despite finding that the investigation process was inconsistent with the employer's policy, Commissioner Wilson found the employer was "entitled" to believe the employee was not capable of being cautioned about his behaviour or controlling himself.
In Hughes v Momentum Wealth Pty Ltd  FWC 9072, an employee was terminated when he pushed and stood over a hotel patron at a work social club function. In upholding the dismissal, Commissioner Williams:
- found the conduct was a valid reason for dismissal
- noted the employee had continued to engage in aggressive conduct by abusing the Managing Director and refusing to leave the venue when asked
- highlighted that the employee had a prior final warning for head-butting a colleague at an after work gathering, and
- gave weight to the fact that, at the time the employee was given the final warning, the employee was told any further instances of aggression would result in his dismissal.
In Paul Braughton v Coca-Cola Amatil Limited T/A Coca-Cola Amatil  FWC 2680, the FWC found an employee was validly dismissed after threatening a colleague by stating "let's go to the carpark and sort this out", combined with his behaviour five days earlier when he suggested the same colleague should "bend over a bit more for the company". The employee was notified of both allegations of misconduct in a single show cause letter.
In upholding the decision to dismiss, Commissioner Simpson gave weight to a 2013 warning for arguing with another staff member and anger management counselling provided to the employee by the employer. Accordingly Commissioner Simpson was satisfied there was a valid reason to dismiss because "of the conduct being a repetition of similar earlier conduct despite the existence of an earlier warning and training paid for and provided by" the employer.
Takeaways for employers
When considering appropriate disciplinary action following findings of unacceptable workplace behaviour, employers should consider whether or not:
- the employee has any prior warnings for similar behaviour
- the employee has been given training for the particular behaviour
- the employee was previously warned that a repeat of the misconduct would lead to dismissal, and
- they have trust and confidence that the employee is capable of controlling their behaviour in future.
The Commission will consider these factors in determining whether dismissal is a proportionate penalty or whether a warning was more appropriate in the seriousness of the circumstances.
I eagerly await a further update once the High Court hands down its decision and expect this to shed further light for employers on how to best protect their company during any such investigation.